Game Over for Nestlé? Atari Sues Over “Breakout” Kit-Kat Ads

Game Over for Nestlé? Atari Sues Over “Breakout” Kit-Kat Ads

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For most of us, video games and candy go together perfectly, but that doesn’t mean they always get along. In fact, last week the “original” video game company, Atari Interactive, sued food and candy behemoth Nestlé in California federal court. What put Atari on tilt? It was Nestlé’s incorporation of the game play, layout, and namesake of Atari’s classic Breakout video game into a KitKat advertising campaign.

I’ll forgive those readers who are not well-versed in classic video games. Not everyone could be as interesting as I am, having built a vintage video game collection that included more than 700 games across the Intellivision, Atari 2600, NES (Nintendo), SNES (Super Nintendo), Sega Genesis, and other platforms—side note to self from 10 years ago, don’t fall for that “we need more space, you never play them, and wouldn’t you rather have money?” argument. Breakout was essentially a single player version of Pong, whose game play screen is shown in the image below:

Image courtesy of Atari Interactive, via its complaint.

If it isn’t obvious from the screenshot, the goal of the game is to eliminate all of the colored blocks in the wall at the top of the screen. The player moves the spaceship at the bottom to bounce back the bouncing ball until breaks all of the breaks in the wall. Once that happens, you move on to the next stage, where you do it again. Exciting, right?

Nestlé had the clever idea to create an advertising campaign based on the Breakout game where, instead of colored bricks, it used KitKat slabs (I believe that’s the culinary term for a KitKat portion). An example of Nestlé’s online advertising was included in the complaint and is reproduced below.

At the moment, the Nestlé television commercial featuring the “game” is still accessible on YouTube at https://youtu.be/gSzT6Gh91zE.

In the complaint (available here), Atari asserts a number of claims including trademark infringement, copyright infringement, false designation of origin, dilution, and unfair competition. Will any of these claims hold up? I’d say the copyright infringement claim has a fair shot. Atari’s claim of incurring actual damages seems like a stretch though. In fact, Nestlé could plausibly argue that the advertisement increased demand for the Breakout game. If you don’t mind a little armchair quarterbacking, maybe some discovery on whether downloads of Breakout games increased shortly after Nestlé ‘scampaign began?

Setting that issue aside, Nestlé seems likely to win in the court of public opinion as the average member of the public is likely to think “what’s the big deal?” Yet in Atari’s defense, the company owns significant rights in numerous, valuable game franchises with extensive merchandising value. I’m never a fan of slippery slope arguments, but there is a reasonable concern here as to the effect of such use on merchandising rights. And with all that as a back drop, I’d say the chances of a quick settlement are high.

In the meantime, I’ll be scouring eBay for some good deals on Atari 2600s.

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August 23, 2017 at 09:11AM

6 Writing and Productivity Rituals from the Copyblogger Creative Team

6 Writing and Productivity Rituals from the Copyblogger Creative Team

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I’ve said for a long time … writers are magicians. We make something out of nothing. We take syllables and turn them into dreams, sights, sounds. Calls to action and detailed plans for shenanigans. And as every magician knows, if you want to perform magic … you have to know a thing or two about
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August 23, 2017 at 09:09AM

Every Story Has a Shape

Every Story Has a Shape

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I’ve always been a believer that our stories exist before we write them. Our job as writers, once we stumble upon these tales, is to bring them up into the sunlight in such a way that their best and most truly intended contour is revealed.

Robert Duvall as Tom Hagen and James Caan as Sonny in "The Godfather"

Robert Duvall as Tom Hagen and James Caan as Sonny in “The Godfather”

What has screwed me up on my current project—the subject of this “Report from the Trenches” series—is that I excavated the story wrong the first time around. If we think of the tale as a giant dinosaur fossil, I inadvertently chopped off the legs and dug so deep under the skull that the whole damn thing collapsed.

The process of readjudicating a story that we’ve written once and that has crashed and burned is kinda like digging up that dinosaur all over again, only revealing the true beast this time.

I said last week that, though I’d been through this process over and over on previous books, I’ve never really watched myself as I did it. I’ve never taken notes on what the hell I’ve done, or if it worked or not.

But I noticed a couple of things last week.

You could call them “tricks of the trade.” (I prefer the term “storytelling techniques.”)

Here’s one that really helped:

 

Give Character “A” scenes with “B,” “C,” “D,” and “E.” And so on.

 

If we’ve got a character named Michael, make sure he has scenes with the Don, with Sonny, with Clemenza, with Kay, with Fredo, and with Tom Hagen.

Likewise take Tom Hagen and put him in scenes with the Don, with Sonny, with Kay, and with Michael.

Why?

Because each scene acts like a laser beam scanning that as-yet-unearthed dinosaur.

Each scene reveals a new slice of the buried whole.

When we spitball a scene between Michael and Luca Brasi, even if that scene never makes it into the finished book or movie, it lights up an area that had previously been in shadow.

To write or even just to project this scene, we have to ask ourselves, “What would Michael talk about with Luca? What would Michael want? What would Luca want? What if Luca revealed something about the Don from their younger days, something that Michael did not know? Would that change the story? Could Luca betray Michael? Would Michael sell Luca out to another of the Five Families? Why? To gain what? What further scenes and sequences would this lead us to?”

See what I mean about “lighting up” the buried dinosaur?

I watched myself over the past few weeks’ work and I realize that I’ve been doing this unconsciously. I’m using this technique not just with one-on-one scenes but with scenes containing three, four, and five characters.

I’m mixing-and-matching and watching what happens.

And I’m projecting other scenes that this new scene might lead to.

I have two female characters in the story I’m struggling with. One is a detective, Dewey, the junior partner in the team with the protagonist, Manning. The other is the Mystery Woman, Rachel, whom both detectives believe holds the major clues they’re after.

I realized that I had no scenes with these two women together.

Wow. That’s no good.

“Steve, you gotta get these two females in the same room and see what happens.”

What came out was a scene where Rachel had been badly injured in a car chase and had to be taken to the hospital. I sent Dewey with her, to hold her in custody and to watch over her.

The scene opened up a whole sheaf of possibilities. It gave me a chance to see one character in a completely vulnerable position and to have the other, who up to that point had been hostile and antagonistic, find herself in the role of protector.

Sure enough, the two woman bonded—and that plugged in beautifully to the Act Three and Climax that already existed.

The other thing we gain when we mix-and-match characters and give them scenes together is that we tighten the universe of the story. If Tom Hagen has a way he relates to the Don and the Don has a way he relates to Sonny, then when we have a clash in a scene between Sonny and Tom …

 

SONNY

Goddamit, if I had a wartime consigliere, a Sicilian,

I wouldn’t be in this mess!

 

… the exchange is given added weight and dimension because of the other scenes that set it up and now illuminate it.

If Ophelia has had a scene with her father Polonius and her brother Laertes, both on the subject of her infatuation with the melancholy prince Hamlet (and his with her), those scenes add layers of interest when we put Hamlet and Ophelia in the same room and let them struggle to puzzle out their relationship. And when Laertes kills Hamlet in the climax because he believes his friend was the cause of the deaths of his father and sister (as we’ve witnessed in other scenes between and among them), the whole tragedy becomes a tightly-wound hand grenade, exploding with meaning.

 

 

 

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August 23, 2017 at 04:44AM

Billy Joel’s Jewish Star

Billy Joel’s Jewish Star

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BILLY JOEL WEARS YELLOW STAR OF DAVID ONSTAGE
… Post-Charlottesville

One of the most horrifying things you see in the Jewish Historical Museum in Amsterdam is a roll of Jewish stars, the ones needed to be worn during the occupation. Straight from the factory, before they were cut up into individual stars for Jews to wear.

It illustrates the scale of the operation, the horror of the Nazis.

Billy Joel is beloved by lovers and haters. Like every superstar. When he started, his audience consisted of lefties. But over time some boomers turned rightward and now our country is divided.

And artists are silent.

They may tweet. They may put out execrable songs, like Wilco, but their statements are drowned out.

Then someone says no words and has a greater impact than all of them.

I decry the country acts, Taylor Swift, all those who refuse to take a stand. Hell, Taylor Swift has created an entire career based on pushback on hatred and shaming, but she’s silent on the big issues, when they affect everybody else. And if you don’t think entertainers have power, you know nothing about media. Entertainers are more powerful than any news outlet, when they make a stand and stick to it.

Billy Joel has waffled on religion. Said he even attended church. But when the Nazis come…

He’s gonna have to wear the Jewish star.

All you people who think you’re in the clear, who are Catholic despite having a Jewish parent, you’re gonna go too. Everybody thinks they’re immune, but they’re not.

Now the ethos of the sixties was to stand up and be counted. And I applaud those who showed up in Boston, illustrating the miniscule number of neo-Nazi haters. We need to push back and show them that we are the majority. Or else their message grows.

And I don’t see Trump vacating office anytime soon, but if you don’t think the pushback is getting to him, you’re not a celebrity. Celebrities read their socials. They see the hate. It bugs them. And for those insecure who need love to fill them up the disapproval prevents them from sleeping at night. Believe me, Trump is in a state of discomfort. Although I won’t quite say we’ve got him on the run.

And if you’re a Trump supporter, I don’t want to hear it.

Because the truth is they’re coming for you next.

Used to be protests were built around music. You couldn’t have one without performances. But music was not an element in Charlottesville and Boston, we did not see superstars lining up to make a stand, no, they weren’t even in the wings.

To be Jewish is to have experienced anti-Semitism. It’s not quite like being black, but when you wear the Jewish star it is.

African-Americans gained status and power when they owned their identity, even taking the N-word back. As James Brown sang, “I’m black and I’m proud!” Illustrating the power of music to change minds right there.

And white people liked James Brown the same way country artists rap.

You see we are all in it together, even if you don’t want to admit it.

We all pay taxes. We all drive on the roads. We all partake of services. And the more educated our populace, the better it is for society at large.

And I’m not gonna dive deep, so you can find an opening to defend the President’s execrable statements and beliefs, I’m just gonna point you to Billy Joel’s picture, he’s owning who he is in a world where entertainers are cowering.

Let him be a lesson to you.

P.S. If you haven’t seen it, and you should, watch the documentary on Billy Joel’s family in Germany:

Billy Joel – The Joel Files

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August 22, 2017 at 06:21PM

Atypical

Atypical

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Do you know anybody on the spectrum?

Then you will be unable to turn off “Atypical.” Not because they get it so right, not because Keir Gilchrist embodies an autistic kid perfectly, but because they made this show at all!

It’s your own private hell. Oh, I know parents will talk about the benefits, and they are there. But I’ve come to learn having a normal kid, a “neurotypical” as they say in this series, is a great blessing, because…

I’m not talking about a scion with ADD or ADHD. Seemingly every kid has a learning disability these days, if they’re not gifted. But kids who mean well but just don’t fit in, oftentimes don’t have friends, who struggle and unfortunately know it…

Now if you’re one of these parents, you’re probably yelling at the screen right now, saying how I got it wrong. And I probably did, but this is reflected in the scene where parent Michael Rapaport accompanies his wife to the support group and is ultimately defeated and shuts up after being interrupted time and again for not getting the nomenclature right. He means well, but he just can’t play by the rules, which frustrates him since he’s so frustrated by his kid to begin with. But that’s America today, you’ve got to obey the rules to fit in, but every group has a separate decoder ring so we retreat into our niche or we argue, togetherness is rare.

And Rapaport is a revelation. Is this the same bozo who can’t stop ranting and raving on the Stern show? He’s soft here. The reviews say too soft. But there’s still that gulf between father and son, and daughter, how often could you have a heart to heart with your dad? I certainly couldn’t, it was rare.

But the star of the show is Brigette Lundy-Paine, she’s a revelation! She looks too old for the part, and she is, she’s 21, but she inhabits the role, you think she’s real. The track star who stands up for her brother while putting him down, whose whole life is impacted by his condition. She’s always #2, she’s always in the background, it’s her cross to bear, and it’s heavy.

As for vaunted star Jennifer Jason Leigh, you can’t stop staring at her wondering exactly what work she’s had done. I think it’s fillers, in her cheeks, but she just doesn’t look the same. Why do people do this? Is that the world we live in, where no one can get old, where we revere the youth and to show a line or a sag makes you irrelevant? I’ll tell you the truth, if you’re over 50 you ARE irrelevant, AND IT FEELS SO GOOD! You can detect the b.s. Know it’s all crap. It’s good to be ignored. And what’s so great about being young and stupid, knowing so little about how life works. He or she who believes beauty is exterior-only has not lived long enough. He’s a shallow man competing with his brethren who truly don’t care. And if all you’ve got is your looks, you didn’t do enough personal development. I always wonder what these aged men with supermodels talk to them about, or are they robots, destined to act as instructed, for the benefit of the money.

And some of the plot twists work and some of them don’t.

And I can’t say this is a great show. And I was unsure about watching it because of all the so-so reviews. But the world we live in today is one wherein we look for peaks. Those moments that resonate. Like the therapist convinced her boyfriend is cheating on her. We’re all suspicious, and can we know one another anyway?

We live in a world of television. We want to know our characters in depth. We’re less interested in plot than emotion, but story is king in America today, it links the emotions together. And where you get story is on television. And it’s not the small tube of the last century, but a large flat panel akin to a movie theatre, only in this case it starts when you want it to and there’s no talking and no overpriced snacks.

That’s one of the things I liked best about “Atypical.” That after getting hooked I could devour one episode after another. Go deep.

We all want to go deep and we all want to be known. And if they made ‘Atypical” as a film there’d be one dramatic scene where the star was flustered, or he won, there wouldn’t be the ups and downs of regular life, the boyfriend with a past wouldn’t even appear. Turns out we like our stories extended.

Ain’t that interesting in a world where we can’t stop reading about short attention spans.

Television is doing its best to capture the zeitgeist, the real experience of life. “Atypical” is just another show on the continuum. But you’ve got to watch something. You cover all the greats and then…

You dismiss all the losers.

And then you stumble on imperfection that is satisfying.

Like love.

Like life.

Atypical

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August 22, 2017 at 06:21PM

The Failure Of Logan Lucky

The Failure Of Logan Lucky

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You just can’t get the word out.

This is an important story. Just last week I got a call from a major news outlet asking me if major labels were over.

They’re not.

We live in a cluttered society where it’s impossible to reach everybody with your message. The internet explosion which we watched for twenty years has crested and the new normal is…

The established companies rule and good luck competing with them.

This is primarily seen in tech. Five years ago we were still excited by breakthroughs, seemingly every week there was a new site or app or product that became part of the discussion. But now we’ve just got Amazon, Apple, Facebook and Google and if you try to compete with them you’d better be ready to sell out, because if you hold out, you become the rapidly failing Snap.

That’s right, ignore the financial press. IPOs are a way for initial investors to get their money out, they are not an indicator of future success.

So for a while there, back when “The Long Tail” was our bible, it looked like if you made it, they would come, at least in enough quantity to keep you alive.

But that was before you could post your song on Spotify and never get a listen. Back before there were so many marketing messages that if you don’t have dollars to spend and relationships to lean upon, your story does not travel.

So Steven Soderbergh is one of our foremost filmmakers. He decided to do it on his own. Isn’t that what technology and the internet promised? You could make and market all by your lonesome and leave the big boys and gatekeepers behind?

But despite great reviews, “Logan Lucky” failed. It did not meet expectations.

#1 was the poorly received “Hitman’s Bodyguard,” which grossed $21.6 million. It scored 39% on RottenTomatoes.

Whereas “Logan Lucky” scored 93%, but grossed only $8.1 million in approximately the same number of theatres, just over 3,000.

So what went on here?

Well, Soderbergh thought he was smarter than the industry, he only spent half the usual marketing dollars, $20 million instead of $40 million. And he’s going on about how the film is in profit and other hogwash but the truth is his experiment failed.

And artists always want to reach the widest audience.

It turns out longevity matters. Catalog/library/backlist carries you through. And being in the marketplace every day is important.

That’s right, you think you can succeed alone. But you only come to bat every year or so at most. Whereas traditional companies are competing every damn day.

So what this means is we are in the great consolidation, where fewer players have more power. I’m not saying you can’t eke out a living on the bottom, but that’s where you’re going to reside. Either you’re a winner or a loser, the middle class of art projects has failed, just like the middle class of life.

So we live in a marketing economy.

First and foremost your wares must be excellent. Shy of that, forget about it. This is an absolute rule, especially in an open marketplace. Theatrical distribution is a closed world, there is not an unlimited number of cinemas. But there is unlimited real estate online. And when that is the case, the public flocks to the winners. And even in limited marketplaces it’s a winner-take-all economy. Usually only one, maybe two of the films of the thirty released every week succeed.

So the powers-that-be are getting more powerful.

This is a byproduct of the age of clutter.

And it’s no different in entertainment than it is in tech.

You’ve got to gain traction as an individual. But once your project has legs, you’ve got to make a deal with the devil to push it over the top. Otherwise, you stumble, you plateau, because you just don’t have the muscle and reach to get your message heard.

Look at it from the customer’s perspective. Who has time to listen to all this dreck? You expect me to wade through millions of songs, scores of playlists, to find what I like? No, I gravitate to the winners, that which is known.

So, you want to sell out.

There, I said it.

The internet promised independence.

But today independence is death. Because you’re just another jerk with a megaphone and even if your product is great it’s being drowned out by the hype for that which is not.

So you need someone who can huff and can puff and can blow the house down.

And that’s a major movie studio, a major record label, a major book publisher, a major tech company.

Don’t focus on the exceptions. There are always examples that break the rules.

But the trend is opposite. The door is closing. You want to get in before it shuts.

And you do this by aligning yourself with the usual suspects, the winners with power, they may not be able to dominate like they used to, get everybody to experience/purchase their wares, but the wind is in their sails and you’re living in an airless aerie if you don’t align with them.

“‘Hitman’s Bodyguard’ is No. 1, as ‘Logan Lucky’ Disappoints”

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August 22, 2017 at 06:21PM

Where to Begin When It’s Time to Edit Your Content

Where to Begin When It’s Time to Edit Your Content

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As I’ve said before, overcoming perfectionism is not an excuse to publish sloppy or uninspired writing. Content that works for your business is not only clear, accurate, and educational, it also gives insight into your values. And if it doesn’t contain aspects that make it memorable, it’s not going to work. Of course, memorable content
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August 22, 2017 at 09:10AM